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DWI Grossly Aggravating Factors

After a person is convicted of DWI in North Carolina, his sentence is determined based upon the balancing of grossly aggravating factors, aggravating factors, and mitigating factors. North Carolina statute G.S. 20-179(c) states that “[a]t the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case.”

G.S. 20-179(c) goes on to define the grossly aggravating factors as:

(1)    A prior conviction for an offense involving impaired driving if:

a.     The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b.     The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

c.     The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.

Each prior conviction is a separate grossly aggravating factor.

(2)    Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).

(3)    Serious injury to another person caused by the defendant's impaired driving at the time of the offense.

(4)    Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

Typically, a grossly aggravating factor must be determined by the jury in superior court. However, the statute provides that “[w]hether a prior conviction exists under subdivision (1) of this subsection ... shall be matters to be determined by the judge, and not the jury, in district or superior court. If the sentencing hearing is for a case remanded back to district court from superior court, the judge shall determine whether the defendant has been convicted of any offense that was not considered at the initial sentencing hearing and impose the appropriate sentence under this section.”

There are six sentencing levels for DWI offenses, and the top three levels are imposed only when the judge or jury finds one or more grossly aggravating factors. The statute requires the judge to impose an Aggravated Level One punishment if three or more grossly aggravating factors are found. The judge is required to impose a Level One punishment if the grossly aggravating factor in subdivision (4) (driving with a minor in the car) is found or if two other grossly aggravating factors are found. A Level Two punishment must be imposed if only one grossly aggravating factor is found and it is not the grossly aggravating factor in subdivision (4).

The statute specifies that each prior conviction under subdivision (1) is a separate grossly aggravating factor. However, it does not specify whether driving with multiple minors in the car would create more than one grossly aggravating factor under subdivision (4). One could argue that the lack of specification under subdivision (4) would indicate that multiple minors do not create more than one grossly aggravating factor since the statute explicitly states in subdivision (1) the creation of separate grossly aggravating factors. Furthermore, the statute refers to the subdivision (4) aggravating factor in the singular, stating “[i]f the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies.”

It is possible, however, that driving with a minor in the car and driving with “a person with a physical disability preventing unaided exit from the vehicle” would create two separate aggravating factors because these are two separate categories in subdivision (4). The DWI sentencing factors form provides separate boxes to check for each category in subdivision (4), which acknowledges, but does not resolve, this interpretation.

Another grossly aggravating factor which can be confusing is the driving while license revoked in subdivision (2), specifically “Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).” G.S. 20-28.2(a) defines an “impaired driving revocation” as

The revocation of a person's drivers license is an impaired driving license revocation if the revocation is pursuant to:

(1)    G.S. 20-13.2, 20-16(a)(8b), 20-16.2, 20-16.5, 20-17(a)(2), 20-17(a)(12), or 20-138.5; or

(2)    G.S. 20-16(a)(7), 20-17(a)(1), 20-17(a)(3), 20-17(a)(9), or 20-17(a)(11), if the offense involves impaired driving; or

(3)    The laws of another state and the offense for which the person's license is revoked prohibits substantially similar conduct which if committed in this State would result in a revocation listed in subdivisions (1) or (2).

A person’s license is revoked after being convicted of DWI, under G.S. 20-17(a)(2). Driving while his license has been revoked under this section is included as an “impaired driving revocation” and would be a grossly aggravating factor if the person drives impaired during this revocation period. After a period of time, the person can apply for limited driving privileges, which will let him drive to and from work at certain times as well as for other specified purposes. If he drives outside of these limited privileges, the person’s license has still been revoked under G.S. 20-17(a)(2) and this also would be a grossly aggravating factor if the person drives while impaired outside of the limited privileges.

In certain situations (a BAC of 0.15 or more, a subsequent DWI within seven years of a previous DWI conviction, or an Aggravated Level One punishment), a person’s license may be restored pursuant to an ignition interlock restriction under G.S. 20-17.8. G.S. 20-17.8(f) states that “A person subject to this section who violates any of the restrictions of this section commits the offense of driving while license revoked under G.S. 20-28(a) and is subject to punishment and license revocation as provided in that section.” However, the driving while license revoked under G.S. 20-28(a) is not included as an “impaired driving revocation” under G.S. 20.28.2(a), and therefore does not constitute a grossly aggravating factor if a person drives impaired while violating this section.

If you have been arrested for DWI, visit www.rflaw.net for legal help.

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